Man to get new trial against Knox deputy

Appeals court reverses Harvey's 2005 conviction

By Jamie Satterfield Knoxville News Sentinel


A Lenoir City man is getting a second shot at convincing a Knox County jury that the deputy he was charged with assaulting actually brutalized him.

The state Court of Criminal Appeals this week reversed the case against Gary Lynn Harvey and ordered up a new trial - nearly eight years after Harvey arrived at the Knox County Jail with his face bloody and his eyes nearly swollen shut.

Harvey was arrested in May 2003 for allegedly assaulting Knox County Sheriff's Office Sgt. Mike Evans and two other deputies. The brawl occurred during an investigation of a loud music complaint at an apartment complex on Fox Lake Way where Harvey was living and Evans served as a live-in security guard.

The charges were dropped when the deputies failed to show up for court. Harvey filed a lawsuit. The next day, the deputies, alleging they were unaware of the earlier court date, sought and received indictments against Harvey for charges including disorderly conduct and assault.

At a trial in August 2005, Harvey was convicted of disorderly conduct and assaulting Evans but acquitted of charges he assaulted the two other deputies. However, that conviction came after a controversial incident in the back hallway of the courtroom where jurors are taken to a room to deliberate.

For reasons never made clear, Evans, a witness for the prosecution, was in the back hallway during deliberations. A female juror reported to the late Judge Ray Lee Jenkins that she overheard Evans, who was wearing black gloves during the fracas with Harvey, say the "black gloves were covered in red and if (Evans) had (his) way, (Harvey) would be covered in lime."

The appellate court concluded that Jenkins was correct in removing the woman from the jury but fouled up from then on in the case.

First, the judge replaced the woman with an alternate who already had been excused from the case and sent home, a legal no-no, Appellate Judge Norma Ogle wrote in the opinion.

The court conceded that defense attorney Herbert S. Moncier listed the procedure as a possible solution, but Moncier had also adamantly pushed for a mistrial. Neither was an appropriate legal option, something the court said it was up to the judge to know.

Ogle wrote that Jenkins further fouled up matters when he told the remaining jurors to bring the alternate "up to speed." The law requires a jury to begin deliberations anew if a new juror or alternate juror takes a seat on the panel after the group has already started considering the case.

Harvey's civil suit was ultimately dismissed when Moncier was barred, in an unrelated matter, from temporarily practicing in federal court.